Exhaustion of Administrative Remedies: The Lesson from Environmental Cases

The law governing exhaustion of administrative remedies is complex and confusing and fosters needless litigation: litigation that is burdensome to the courts and costly to defendants, that adversely affects agency decision making and that by its very existence, wrongly influences courts to dispense with the exhaustion requirement. Exhaustion remains troublesome to the courts; many of the decisions are confusing and poorly reasoned. A reexamination of the exhaustion doctrine is called for, not only to indicate how the cases should be decided, but also to clarify the issues sufficiently to guide parties\u27 behavior so that they may avoid litigation over exhaustion\u27s requirements. This Article undertakes such an examination, focusing on exhaustion as it arises in environmental cases. This Article examines the rationale underlying the exhaustion requirement. It finds that good reasons support the requirement, though not necessarily the same reasons that are usually recognized